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We're still digesting today's lengthy decision in the Oracle v. Google appeal, but we're disappointed—and worried. The heart of the appeal was whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringed that copyright. According to the Federal Circuit today, the answer to both questions was a qualified yes—with the qualification being that Google may have a fair use defense.

Quick background: When it implemented the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google relied on Java APIs. Application Programming Interfaces are, generally speaking, specifications that allow programs to communicate with each other. So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.

In May 2012, Judge William Alsup of the Northern District of California ruled that APIs are not subject to copyright. The court clearly understood that ruling otherwise would have impermissibly—and dangerously—allowed Oracle to tie up “a utilitarian and functional set of symbols,” which provides the basis for so much of the innovation and collaboration we all rely on today. Simply, where “there is only one way to declare a given method functionality, [so that] everyone using that function must write that specific line of code in the same way,” that coding language cannot be subject to copyright.

The Federal Circuit disagreed, holding that Java’s API packages were copyrightable, although it sent the case back to the trial court to determine whether Google's copying was nonetheless a lawful fair use.

The implications of this decision are significant, and dangerous. As we and others tried to explain to the court, the freedom to reimplement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for mainframes, PCs, workstations/servers, and so on—by ensuring that competitors could challenge established players and advance the state of the art. In other words, excluding APIs from copyright protection has been essential to the development of modern computers and the Internet.

When programmers can freely reimplement or reverse engineer an API without the need to negotiate a costly license or risk a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to create. Moreover, compatible APIs enable people to switch platforms and services freely, and to find software that meets their needs regardless of what browser or operating system they use. The freedom to reimplement APIs also helps rescue “orphan” software or data—systems whose creators have either gone out of business or abandoned their product in the marketplace.

Today's decision puts all of that at risk, potentially handing Oracle and others veto power over any developer who wants to create a compatible program. What is worse, if today's decision is taken as a green light to API litigation, large and small software tech companies are going to have to divert more and more resources away from development, and toward litigation. That will be good for the legal profession—but not so good for everyone else.

The case is far from over. Google may seek a hearing from the full court, or appeal to the Supreme Court. Alternatively, Google can focus on asserting its fair use defense, and hope that fair use can once again bear the increasing burden of ensuring that copyright spurs, rather than impedes, innovation. We're confident that it can, but it shouldn't have to.